Criminal Code (IV): Civil Liberties

May 20, 1978

THE PROPOSED federal criminal code has divided civil libertarians. Some, following the lead of the American Civil Liberties Union, are calling for rejection of the code because they regard it as a threat to individual rights. Others, including many often allied with the ACLU, believe the code's gains for civil liberties far outweigh its defects. Our own view is that, if the House will make certain changes in what the Senate has approved, the proposed code will be a major advance for both civil liberties and criminal law.

There are four sections in the Senate's version of the code that should be eliminated. These would 1) codify the Logan Act, which limits the contacts of American citizens with foreign governments, 2) resurrect the part of the Comstock Act that makes it a crime to send information about abortion through the mail; 3) establish a system of preventive detention for suspects awaiting trial; and 4) keep the federal government in the business of prosecuting obscenity cases.

The first three of these provisions were added to the code on the Senate floor after having been rejected by the Judiciary Committee. Two involve existing legislation (the Logan and Comstock acts) that even the Department of Justice wants removed from the books. The third, preventive detention, is a subject of such controversy that it, like wiretapping and capital punishment, should be handled by Congress as a separate issue.The proposed code's provisions on the fourth, obscenity, are better in some respects and worse in others than the existing law, but the subject is simply one that the federal government ought to leave to the states, Washington has enough to worry about with trying to police the distribution of obscene material.

Beyond these four sections of the proposed code, discussions of civil-liberties questions turn on the meanings that can be given to the precise language used. The ACLU argues, for example, that the language of the conspiracy section could have the effect of broadening the existing law to make criminal what are now innocents acts. Our views that the proposed changes are a slight improvement over what is on the books, although we share the belief that a revision of this particular law ought to produce a statute that is much less vague and also much less of a threat to civil liberties.

Similarly, we share some of the worries about what would be a new federal crime: soliciting someone to commit a crime. Provisions like this are found in most new state criminal codes. They are said to be highly effective against white collar and corporate crime. Yet there is a danger that such a law could be applied to those, such as political dissenters, who never get beyond talking about illegal behavior.

On the hand, we think the complaints made about most of the other sections of the proposed code rest on stained interpretations of what it actually says. For example, there has been opposition to the code's provision against inciting military insubordination. Yet the basic change from existing law is the subsitution of the word "incites" for such words as "advises," "counsels" and "entices." Given the legal meaning of "incites," this seems to be a tightening up, rather than a loosening , of a potentially dangerous law.

There are some major gains for civil liberties in other parts of the code to which there seem to be relatively little objection.The present civil-rights law punishes only conspiracies to deprive persons of their rights, the code's version would punish individuals for such actions. The code would also expand the federal bar against discrimination to include sex as well as race, color, religion and national origin. It would modernize the sexual assault laws, and it would reduce the maximum jail term for possessing small amounts of marijuana from one year to five days.

Although there is much in the proposed code that we would prefer not to see there, these improvements in the law along with the changes we have mentioned would more than make up for its short-comings. There remains the question of how the House of Representatives should deal with it, but that is a separate question to which we shall return.